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Episode Notes

On August 26, 1920, nearly two years after President Woodrow Wilson gave a speech before Congress in support of guaranteeing women the right to vote, Secretary of State Bainbridge Colby certified that the 19th Amendment had become a part of the Constitution, and women could no longer be denied their vote.

While the amendment had been introduced to congress nearly forty years earlier and faced many challenges, women like Lucretia Mott, Elizabeth Cady Stanton, Susan B. Anthony, and Ida B. Wells-Barnett never stopped fighting and pushed for equality in the voting booth.

On today’s Lawyer 2 Lawyer, host Craig Williams is joined by historian Ellen Carol DuBois, author of the book, Suffrage: Women’s Long Battle for the Vote and law professor Paula A. Monopoli, author of the upcoming book, Constitutional Orphan: Gender Equality and the Nineteenth Amendment. Ellen and Paula discuss the upcoming 100th Anniversary of the official adoption of the 19th Amendment, take a look at the history of women fighting for voting rights, spotlight the women of the suffrage movement, and discuss the impact voting women will have on the upcoming election.

Special thanks to our sponsors, Blue J Legal and LEX Reception.

Transcript

Lawyer 2 Lawyer – Law News and Legal Topics

Celebrating the Upcoming 100th Anniversary of the 19th Amendment

07/10/2020

[Music]

Ellen Carol DuBois: Many suffragists turned to their state constitutions and were able to enfranchise women there from Colorado to Wyoming to California, ultimately to New York, and those women when they gained the right to vote had full voting rights and could therefore vote in Federal elections. So in many ways it was those women 4 million by 1916 who had political power and who were the tipping point.

Paula A. Monopoli: If there had been an effort to have Alice Paul and the suffragists help African Americans suffragists in the south, push back on that voter suppression and they’ve taken a little longer to do that, to use the 19, to really give it teeth, I think we would have seen a different more robust interpretation.

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Intro: Welcome to the award-winning podcast, Lawyer 2 Lawyer, with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from a sunny and hot Southern California.

I write a legal blog named ‘May It Please The Court’ and have a book out titled ‘The Sled’ and ‘How To Get Sued’.

Before we introduce today’s topic, we would like to take this time to thank our two sponsors LEX Reception and Blue J Legal.

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On August 26, 1920 nearly a hundred years ago, Secretary of State Bainbridge Colby certified that the 19th Amendment had become a part of the Constitution, and women were officially granted the right to vote in U.S. Elections. And despite many challenges to the Women’s Suffrage Movement, women like Lucretia Mott, Elizabeth Cady Stanton, Susan B. Anthony, and Ida B. Wells-Barnett never stopped fighting and pushed for equality in the voting booth.

On September 30, 1918 President Woodrow Wilson gave a speech before Congress in support of guaranteeing women the right to vote and two years later it became official.

So today on Lawyer 2 Lawyer we’re going to be celebrating the upcoming 100th Anniversary of the Official Adoption of the 19th Amendment, take a look at the history of women fighting for voting rights, spotlight the women of the Suffrage Movement and discuss the impact voting women will have on the upcoming election.

We have a great show for you today.

Our first guest is Ellen Carol DuBois, she is a Professor of History and Gender Studies. She’s taught at the University of Buffalo and finished her career at the University of California LA retiring in 2017.

Ellen is the author of numerous books on the history of women’s suffrage in the United States including her latest, ‘Suffrage: Women’s Long Battle for the Vote’, from Simon & Schuster.

Welcome to the show, Ellen.

Ellen Carol DuBois: Hi.

J. Craig Williams: And our next guest is Paula Monopoli, she is the Sol & Carlyn Hubert Professor of Law at the University of Maryland Carey School of Law, where she founded its Women, Leadership & Equality Program.

Paula’s new book, ‘Constitutional Orphan: Gender Equality and the Nineteenth Amendment’ is due out in August, next month from Oxford University Press.

Welcome to show, Paula.

Paula A. Monopoli: Thank you.

J. Craig Williams: Well Paula, let’s turn to you first and take a look at the 19th Amendment and kind of give us a little bit of background about how it became law and perhaps what in the Women’s Suffrage Movement motivated this amendment?

Paula A. Monopoli: I think Craig that the subordination of women drove them to really push to be given the vote. They looked at the vote as a matter of self-governance and they needed to change the vast array of laws that existed in the 19th century, that kept women in a legally subordinated position, socially subordinated position and it was a matter of fairness and justice, then the vote was central to becoming full citizens and to giving them the power to change laws, laws around marriage for example, coverture which subordinated them and made them sort of subsumed within their husband. They lost their rights when they were married. Laws that really affected their position as full citizens.

So I think that’s what drove these women in the 72 year intergenerational fight, it was really three generations of women it took; starting as early as 1848 even before all the way till 1920, the event that we’re marking today in terms of passing the 19th Amendment as law.

(00:05:04)

And that fight continues post 1920 and in my book Constitutional Orphan I really look at that phase of the fight and what happened there in terms of the 19th Amendment as law. It was as you know a constitutional amendment is a bare-bones sort of provision and it really needs tending to and really needs to be interpreted and given heft and that’s something that we can talk about. I think this hour is — it’s really that point where that kind of push the suffragists made to get this over the finish line, which was a tremendous achievement, really kind of subsided and I think the 19th Amendment ended up as being interpreted very thinly as a result.

J. Craig Williams: Ellen, let’s talk about the amendment itself, what’s incited and what does it actually entitle women to have?

Ellen Carol DuBois: It’s very interesting. The 19th Amendment is patterned exactly on the 15th Amendment and it would be wrong to say that it gives women the vote. What it does as does the 15th Amendment is prohibit the states from interfering with the right to vote on the basis of sex. This is very important, because earlier in the suffrage movement in the late 1860’s and early 1870s, in this high spirit of reconstruction a woman suffragists hoped to have a different kind of amendment, one that would have linked the right to vote affirmatively to national citizenship and on that basis to prohibit discrimination against women.

This couldn’t be more important, because now in 2020 we know that the states still control the right to vote and the Federal Government has virtually no tools to protect the right to vote.

So, again the 19th Amendment just says states can’t deprive persons of the right to vote on the basis of their sex, that’s it.

J. Craig Williams: How did it become law? What was it that was the tipping point that allowed this to get into the Constitution?

Ellen Carol DuBois: Well let’s remember it they were at it for 70 years. I would say there’s several things. One is I would say that it is not true as many text books suggest that it was the First World War that made the difference. If anything my general sense is that the First World War delayed the winning of the constitutional amendment by a few years.

So I guess there are two things to say. One is that whereas when the movement started in the 1860s, women were highly subordinate, as Paula points out in law, also in society. By the early 20th century an enormous amount had changed. Women were — more and more women were educated, one-quarter of the paid labor force was female, women were in processions, they were major figures in arts and literature.

So the right to vote which would have been at the cutting edge for women in 1870, was almost a final step in women’s freedom or women’s you know formal equality in 1920.

Important to your legal audience, because the Constitution says very little affirmatively about who can get the right to vote, it is still the case as we suffer today that it’s the states that control the right to vote, and as a result in the years between when the Women’s Suffrage Amendment was first introduced and what is it, 70 years later when it is finally ratified, many suffragists turned to their state constitutions and were able to enfranchise women there from Colorado to Wyoming to California, ultimately to New York, and those women when they gained the right to vote had full voting rights and could therefore vote in Federal elections.

So in many ways it was those women, 4 million by 1916 who had political power and who were the tipping point.

J. Craig Williams: Paula, what kind of infighting occurred between the women and the movement; I understand this was not a unanimous type of an effort?

Paula A. Monopoli: No, it was not and in the years leading up to the vote there was a split. Ellen had mentioned the passage of the Fifteenth Amendment in 1870, there was a split among suffragists about the fact that women were not included in that and they form two separate groups which then came back together with the National Organization later in the century in 1890.

So that was the first big split and then later around 1914 things sort of moved on as a very — the pace of states giving women’s right, the right to vote slowed, you had people and they were younger people in the movement like Alice Paul, who I’m sure we’ll talk about a little more in splitting off and forming the National Woman’s Party.

(00:10:11)

So that was another split. She adopted more militant tactics, picketing the White House and President Wilson, which really concerned the more conservative older women in the group.

The other sort of interesting splits happened again after the amendment was ratified, the National Woman’s Party and Alice Paul turned almost immediately to the Equal Rights Amendment. They saw the 19th dominantly as giving them political liberty or political rights, but felt that there needed to be a Second Amendment, the Equal Rights Amendment to give them the rest of their civil rights.

The National American Woman Suffrage Association turned became the National League of Women Voters who we all know today. They turned to educating people about voting and some of the social welfare legislation.

There were women in both groups who were opposed or supported the Equal Rights Amendment and that split after ratification again took a lot of energy away from sort of giving the 19th more a robust interpretation and right after it was ratified, there was pending what we call enforcement legislation under Section 2 of the 19th, very similar to what you see under right after the 14th and the 15th were passed in the mid 19th century, and what we see today in civil rights legislation, but that legislation never came out of Congress. It was stymied and this was all a part of the as Ellen has said, they sort of push back of the southern states against the Federal Government intervening again in their elections as they did in reconstruction.

So African American women were delayed at the polls, even though the 19th have been passed in August, in November 1920 they faced significant poll taxes, literacy tests, made to wait in long lines to register, threats of intimidation and that happened even though the 19th had become law.

So if there had been an effort to have Alice Paul and the suffragists help African Americans suffragists in the South push back on that voter suppression. And they have taken a little longer to do that, to use the 19 to really give it teeth, I think we would have seen a different, more robust interpretation.

And Ellen mentions today and voter suppression statutes today, so there’s a lot of scholarship and talk among scholars about using the 19th in more robust ways today to really help push back on statute, statutes for example, there’s a Florida case where they’re sort of pushing back on giving former felons the right to vote, re-enfranchising and making them pay every last fee and fine. And there may be ways in which the 19th could help, because those disproportionately affect women and in particular African-American women in terms of the gender pay gap.

So I think there’s a lot of links between when it became law and how we could sort of reinvigorate it today which are very exciting.

J. Craig Williams: Let’s talk about how the ERA has affected the vote and what changes in the law you think are attributable to the passage of this amendment? What had women done as a consequence of getting the right to vote?

Paula A. Monopoli: You mean the 19th Amendment?

J. Craig Williams: Exactly. I’m sorry, I apologize.

Paula A. Monopoli: I think that what we saw after the 19th was passed there was certainly women did show up and they voted, but we didn’t see much difference for example in terms of voting patterns after the 19th, but it was contested, its validity was contested and there were some court cases around that. There were interpretations of it in state courts which were very interesting in terms of its effect and there were some courts which saw it as broader than just the vote, they saw it as all political rights and giving women the right to serve on juries which was seen as a political right.

And so it changed some laws that way, although there were other courts which said no, it’s very narrow, it just means the right to cast a ballot, same thing with holding public office.

So in that decade after it was passed it certainly didn’t have a tremendous impact in terms of how law developed with the exception of those courts which for example, extended jury service because they said look, our state statute says electors are eligible for jury service, women have to now be electors according to this Federal Amendment, it changed state law that way.

There were a few Federal cases which invoked the 19th and talked about the great changes in law that had come around with the 19th, which was a little bit of an overstatement and those cases invoked the 19th for actually striking down protective labor legislation for women which was interesting.

So there was a little bit of hope that the 19th would be broadly construed as meaning more than simply the narrow right to vote. But then by the end of that decade after it was passed, we see kind of retrenchment and we see it go into and again, one of the meanings of my choosing Constitutional Orphan is to describe the fact that it was sort of not developed fully, the suffragists turned to other things.

(00:15:15)

Now they did great work, they did legislative change in the states, they helped the status of women tremendously, they just didn’t do it through the courts and through the 19th, and you rarely see it.

For those of us who’ve gone to law school, it was rarely mentioned in law school and we owe women like Ellen historians who in the 60s and 70s when they were starting out their research —

Ellen Carol DuBois: I am very old.

Paula A. Monopoli: They, we build on their work. They said this is important history, that history essentially disappeared. So we don’t see that much impact in terms of the 19th. We saw some hopeful signs early after it was passed, but really the attention and focus turned to the Equal Rights Amendment on the part of the National Woman’s Party.

Ellen Carol DuBois: If we move away from the formal legal jurisprudence and we follow the question of women’s voting patterns, I do think we see a little something. The 1920s were a very conservative period and voting participation declined for men, and so although women were charged with their votes bringing in conservative Republicans and bringing down the voting levels, I don’t think that that can be sustained.

I do think that some historians and I’m among them, think that we can attribute in part the massive historical change of the 1932 election, which profoundly and permanently changed the Democratic Party and made it, made it into the reform party that it had not been, it finally took away the dying reform embers from the Republican Party.

And I think that we can attribute that to the entry, the gradual entry of working-class women, especially first and second generation immigrant women who were following their husbands and fathers into the Democratic Party.

So the changes after 1920 to women’s voting participation and to their office holding, some countries prohibited office holding despite enfranchisement, that was not the case with the United States, but those changes go very slowly.

J. Craig Williams: They do. Well before we move on to our next segment, we’re going to take a quick break to hear from our sponsors, we’ll be right back.

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J. Craig Williams: Welcome back to Lawyer 2 Lawyer. I’m Craig Williams and with us today are authors and professors Ellen Carol DuBois, author of the book, ‘Suffrage: Women’s Long Battle for the Vote’, and Paula Monopoli, the author of the book, ‘Constitutional Orphan: Gender Equality and the Nineteenth Amendment’.

We have been spotlighting the 100th Anniversary of the Official Adoption of the 19th Amendment, but I’d like to segue briefly into how this Suffrage Movement applies to kind of current day situations and race relations. Ellen, can you give us some history of how that developed into the 19th Amendment?

Ellen Carol DuBois: Well as Paula points out the record of the Women’s Suffrage Movement on the matter of racial equality is mixed. Its first proponents were abolitionists and the movement grows out of the anti-slavery movement, but by the time the movement moves into the Gilded Age, the late 19th century when the entire society is becoming Jim Crow, the Suffrage Movement becomes more segregated.

By this time African-American women most of whom are either they or their parents are just out of slavery, are moving very quickly into political action and education. But they can’t get into the Suffrage Movement, which is really blocked, so as to increase the possibility of White Southerners being open to woman suffrage.

And so Black women, African-American women pursue suffrage from their own organizations with increasing bigger.

(00:20:00)

I guess the first thing I would say is that as we enter the twentieth century, a period of high Jim Crow as we now know President in those last years, Woodrow Wilson was not quite the Paragon of virtue that we were taught in high school and it was not only with respect to race, but also gender.

The Suffrage Movement especially at the national level is very segregated, because Democrats control national politics and Democrats are still controlled by southerners.

J. Craig Williams: Well Paula, as we look at women’s vote, how do you think women will be affecting this upcoming election?

Paula A. Monopoli: Well, I think one of as Ellen mentioned there was some small and slow change after the 19th Amendment was adopted in terms of voting patterns and very interesting work on that, but again, African-American women, Latino women were de facto not allowed in many places to vote. We saw Native American women were not citizens until 1924, they couldn’t vote right after and faced similar burdens and Asian immigrant women the same until the 1940s and 50s.

So we don’t see that gender gap in voting with women voting in very different ways until the 80s and then in the 90s they begin to vote majority democratic, and so we saw in 2008 and 2012 that African-American women were clearly part of the reason that President Obama was elected, they in 2016 they’ve always voted in large numbers didn’t vote in quite the same numbers, but 95% of African-American women voted for Hillary Clinton, only a fewer than a majority of White women voted for Hillary Clinton, 53% voted for Donald Trump.

So if we see a change in that pattern, I think and we see big turnouts, women can change elections. They have now been changing election since the 1980s and 90s and so I think in terms of the legacy of the Suffrage Movement and racism, again, it will be, it may be African-American women voters who are in the vanguard to use a phrase by another historian Martha Jones and her book, and that we are seeing those patterns of voting shifting the tide and changing the political culture and landscape in this election.

J. Craig Williams: Ellen, Paula identified a number of races and groups that joined the vote for women as time went on, are there particular trailblazers for each of those groups or are there more so trailblazers just in general for the women’s movement and who are they?

Ellen Carol DuBois: Well, if we go through the 20th century, Paula already mentioned Alice Paul, a born in the 1880s who led the militant wing, the younger militant wing, the smaller more radical wing of the Suffrage Movement and then led the movement for the ERA until she died in the 1970s. And the leader of the larger more conventional lobbying group was Carrie Chapman Catt who was about 20 years older than her and if somebody said the other night on the PBS Show, they were very similar, they were both incredibly charismatic, determined, disciplined women. They just followed very different routes.

After the vote was won in 1920 Catt went on to form the League of Women Voters and then also to put her energies into international women’s rights.

The leading figures for the African-American vote, the woman we know the most about in the 1910s was the Memphis born Chicago resident Ida B. Wells-Barnett, who was the — let’s call her the Alice Paul of African-American women. She just was extremely radical, very unwilling to go into pragmatic actions. Unfortunately she died about 1924, maybe it was 28, but quite early.

I would say that the other person I would point to would be a woman named Mary Church Terrell, who was — let’s call her the Carrie Chapman Catt of African-American women. She was — she was one of the first Black woman to graduate from Oberlin. She had trained, she had gone on to education in Germany and she went on to become an increasingly militant advocate of Black women’s rights and continued — I wish I knew her history a little better, but continued, I think into the 1950s.

As for the other groups, we don’t have records like that, and Native American men as well as women couldn’t vote in 1920, it’s not until 1924 that tribal requirements change. I am sure Paula can elaborate this.

(00:24:50)

So there really aren’t Native American suffragists nor are there Asian American suffragists, because really until the Second World War the number of native-born Asian women was tiny and Asian people could not be naturalized because of very, very radical conservative laws dating all the way back to the 1790s.

J. Craig Williams: Well, it looks like we’ve just about reached the end of our program, so I’d like to take this opportunity to invite our guests to share their final thoughts along their contact information, and as we do so, Paula can you also address what’s next for this movement?

Paula A. Monopoli: Well, I think at this moment in time what I hope we get as a kind of a society from recognizing the 100th Anniversary of the 19th Amendment is that we mark it as an incredible achievement, women had to persuade men, those women who were in the states that had already been given the vote, worked incredibly hard and put that all together and got the 19th Amendment which allowed women to vote more across the board, right into the Federal Constitution, but what we learned from that is that we need coalitions.

And as I pointed out before, after the Amendment was passed the two different suffrage groups went in different directions, they did not answer the call of African-American suffragists and some White suffragists who were co-founders of the NAACP, people like Mary White Ovington and Florence Kelley to work together with African-American suffragists, to make the promise of the 19th come to fruition.

So what we should learn today, we talked about allyship today and supporting the sort of push against structural racism and I think if we learn that from those mistakes of the Suffrage Movement, we can go an incredibly long way today to bring this really amazing amendment to its full promise, and that’s what I hope we see.

Again, thinking about whether we can use it together with the 14th, can we read them together synthetically to have a more robust constitutional meaning and address things like voter suppression today, I think that would be just a wonderful legacy for this centennial.

J. Craig Williams: Great, and your contact information?

Paula A. Monopoli: So I am at the University of Maryland Carey School of Law and the book is — my book coming out from Oxford University Press is, ‘Constitutional Orphan: Gender Equality and the Nineteenth Amendment’, and my Twitter which I just joined, is @ProfMonopoli.

J. Craig Williams: Great. Thank you very much, and I spell, Monopoli?

Paula A. Monopoli: Exactly.

J. Craig Williams: Wonderful. Thank you so much. Ellen, your final thoughts along with your contact information if you would like.

Ellen Carol DuBois: Well, first of all, my contact information is [email protected]. I do want to make one little point, which is, it is correctly said that White women did not voted for Trump at a much higher level than African-American women, but it is also true that White women voted for Trump at a much lower level than White men and that is important to recognize, so that the possibility as Paula says of a coalition is enhanced rather than this record misread as a unidimensional experience of racial antagonism which makes coalitions between Black and White and other women of color impossible. That would be deadly for us.

J. Craig Williams: Well thank you both very much to wrap up. We’d like to thank our guests Ellen Carol DuBois and Paula Monopoli for joining us today. It was a pleasure having you both on our show.

Paula A. Monopoli: Thank you, Craig.

Ellen Carol DuBois: Thank you.

J. Craig Williams: And if per our guests if you liked what you heard today, please rate us in Apple Podcasts, Google Podcasts or your favorite podcasting app.

You can also visit us at legaltalknetwork.com or you can sign up for our newsletter.

I’m Craig Williams, thanks for listening. Join us next time for another great legal topic.

When you want legal, think Lawyer 2 Lawyer.

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Episode Details
Published: July 10, 2020
Podcast: Lawyer 2 Lawyer
Category: Diversity
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Lawyer 2 Lawyer
Lawyer 2 Lawyer

Lawyer 2 Lawyer is a legal affairs podcast covering contemporary and relevant issues in the news with a legal perspective.

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